Blackmun: Roe was a doctor’s rights case, you know

posted at 10:01 am on January 22, 2014 by Ed Morrissey

Former Supreme Court Justice Harry Blackmun passed away in 1999, but his legacy as the author of Roe v Wade lives on — even if 55 million of its victims have not. Chapman Law professor Ron Rotunda recalls a reflection given by Blackmun 21 years later to a group of lawyers at an Aspen Institute conference, at which Rotunda took copious notes and quotes. Rotunda offers his own recollection of the strange conversation and circumstances in today’s Chicago Tribune, including Blackmun’s insistence that Roe was a doctor’s rights case, and not a women’s rights issue:

He would take no questions; he spoke from notes. His wife Dottie sat next to him, wearing a T-shirt that said, “The Supreme Question: Row vs. Wade.” Underneath it was a cartoon of a man rowing while another was wading in the water. I was surprised that she treated the topic as a joke. …

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

Blackmun explicitly rejected the argument that “one has an unlimited right to do with one’s body as one pleases.” Instead, in Roe, Blackmun cited, with approval, Buck v. Bell, a 1927 case that approved of compulsory sterilization.

He closed by saying, “it has been exciting to be in the center of the issue so politicized by the political branches.” He added, “I make no apologies for the scholarship or result in the opinion.” His last words on Roe, “I’m really not too bad a guy after all.”

Blackmun expressed surprise at the amount of criticism over his decision and opinion, and the fact that he got picketed by protesters at a speech in Cedar Rapids, Iowa on one occasion. Blackmun sniffed at Justice Byron White’s impassioned dissent and reference to “raw judicial power,” referring to it as “emotional,” and bragging that he “made Byron eat those words” in later decisions.

Blackmun may have defended his legal reasoning to the bitter end, but he would be in a shrinking minority today. Even those on his own side think it was poorly decided, and for at least one of the reasons Blackmun stated in his defense. Ruth Bader Ginsburg said Blackmun went “too far, too fast,” and ended up catalyzing the pro-life community by essentially tying it to a right to privacy, as TPM reminds us today:

Her pique is that the Roe opinion, written by Justice Harry Blackmun, relies on a “right of privacy” under the 4th Amendment and emphasizes the right of physicians to practice medicine as they see fit. She prefers that abortion rights be recognized under the equal protection clause of the 14th Amendment, based on the view that having a child should be a woman’s choice.

Ginsburg has also said that the ruling damaged the growing movement for abortion rights by going “too far, too fast” and catalyzing the conservative pro-life community. Her words ring truer than ever today as the movement that was then on the decline has since has been successful at unwinding Roe protections in the Supreme Court and has dramatically curtailing abortion rights in red states, potentially nudging the issue back to the justices in the foreseeable future.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told students at the University of Chicago Law School, as reported by The Associated Press. “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

As John Fund notes, that makes it more or less a consensus in favor of seeing Blackmun’s activism as bad law and worse politics:

“One usually doesn’t speak about the conference of the U.S. Supreme Court,” Blackmun began as he read from his own notes, but he said he thought it was important to “promote understanding of the Supreme Court.”

“I decided it,” he said of the infamous case.

His decision lives with us today. NRO’s Ed Whelan has said Blackmun’s majority opinion “is rivaled only by Dred Scott as the worst opinion in Supreme Court history.” One of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”

But did Blackmun have any choice? A 14th Amendment-based ruling would have to take into account the equal application of law to both the woman and the human life that gets snuffed out in abortion. The scientific understanding of human life’s beginning at conception — when the sperm meets the egg and combines to create a unique organism that demonstrates its vitality through growth — was not as strong in 1973 as it is today, for a variety of reasons — better photography demonstrating embryonic development not least among them, but also the near-universal availability of ultrasounds and better messaging from the pro-life movement.

The ultimate question isn’t actually about religion or faith, but whether one human being has the right to kill another for the sake of convenience — which indeed would present a huge problem if considered under the terms of the 14th Amendment and equal protection under the law. So far, we’ve killed 55 million human lives on the scientifically ignorant premise that either they’re not really human or they’re not really alive, or the ethically bankrupt notion that one human life isn’t as important as another and can be tossed away when inconvenient. That’s the actual issue at stake in today’s March for Life.

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It’s sad to think that when he made his decision the fate of tens of millions of human beings instantly became death, like Hitler being elected and the clock started counting down for 60 million people.

So, the decision had little-to-nothing to do with “women’s rights,” but instead fit right into the progressive notion of an enlightened elite (in this case doctors who should be free to practice medicine without interference from government) deciding for those obviously unfit (both child and mother) to determine for themselves whether a life is worth living.

Roe ”protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

So, anything after needs a court order? This would put all abortions after this time illegal, even with Roe.

With how obamacare is set up to function with the massive federal intrusion into doctors decisions to supposedly “save costs” …..could a legal mind explain how it can stand AND Roe v Wade stand. They seem diametrically opposed….

As an aside, today’s march is focusing on adoption. Planned Parenthood and other abortion factories have killed something like 55M children since Roe v. Wade. Yet, a far fewer number of babies have been adopted because of the woman opting to be a birth mother. When those horrible evil schreeching women, the Wendy Davis types, scream about abortion being the only options for young unmarried women who find themselves pregnant…… remind them that putting a child to death really isn’t the only option. It is only the most convenient for the woman who doesn’t want to be “punished” with a child. And some of us stand with the children and not the woman who wants to put the child to death.

With how obamacare is set up to function with the massive federal intrusion into doctors decisions to supposedly “save costs” …..could a legal mind explain how it can stand AND Roe v Wade stand. They seem diametrically opposed….

Caseoftheblues on January 22, 2014 at 10:14 AM

Proponents for Obamacare answer this very simply. Dead children do not tax the healthcare system by living. Abortion saves money in the long-run.

Ginsberg understands where Blackmun was coming from; the same place as Sanger.

Beck really needs to dox Blackmun. Make people understand what kind of repulsive thinking went on to make this decision.

The real problem, though, is we have so many women now in their 60’s who had abortions in the heyday of the 70’s that confronting them with their decision does not bring enlightenment, it builds resentment.

Our Founding Fathers wrote that Americans have the right to” life, liberty, and the pursuit of happiness”. In my opinion, the most important of these rights which our Founders bequeathed us, is the right to life, because without it, the other two rights will never happen on this mortal plane.

Since Roe vs Wade, over 56 million lives have been ended by the abortionist’s knife, before these innocent human beings had the chance to live them.

The nadir of ethics, morality, law. Unless overturned in its entirety, Roe v. Wade will stand as the mortal blow to our Republic, for all of our divisiveness ultimately emulates from this fundamental disagreement.

OT: He’s a constitutional law scholar–a real one, not a phony pretender like Obama–and a professional responsibility scholar. He taught the Professional Responsibility course I took too many years ago in law school. He and a colleague at that school (John Nowak) are authors of the definitive hornbook on constitutional law, which goes by the shorthand “Nowak & Rotunda.” Rotunda is a quirky piece of work. He owned a Rolls Royce (thanks to the book royalties), and for the annual law-school charity auction, he’d offer to drive the highest bidder and a date in his Rolls to get drive-in service at Steak ‘n’ Shake. In addition, the guys suits and ties were stuff of legends. What a character. And what an intellect.

In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.”

If this was followed you would have virtually no argument whatsoever. The current law is so far from this decision as to be unrecognizable. The left thinks it needs to be abortion on demand up to or even after delivery.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told students at the University of Chicago Law School, as reported by The Associated Press. “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

So..she doesn’t sound biased at all. I mean, it IS the job of a SCOTUS judge rule in favor of “change”…right? The task for SCOTUS is to make sure the Constitution changes right?

A 14th Amendment-based ruling would have to take into account the equal application of law to both the woman and the human life that gets snuffed out in abortion.

No it would not have to account for both the woman and the human life. The only individual in the discussion is the woman. The human life is at best a potential individual. Rights are for individuals. Words have meaning and most especially the words carefully chosen in the founding of this country.

Dictionary via google;

in·di·vid·u·al (indəˈvijəwəl)- adjective 1.single; separate.

Additionally, a unique organism that demonstrates its vitality through growth is also a slug, an oak tree or a giraffe. A human being with rights, (i.e. an Individual) is a unique organism with a volitional consciousness and the capacity for reason.

Additionally, a unique organism that demonstrates its vitality through growth is also a slug, an oak tree or a giraffe. A human being with rights, (i.e. an Individual) is a unique organism with a volitional consciousness and the capacity for reason.

beselfish on January 22, 2014 at 10:36 AM

Yes, thank you for proving my point. The gestational stages of all organisms don’t change their nature. A gestational giraffe is still a giraffe, not a clump of cells with no nature at all. The same is true for embryos and feti — they are human, and alive. Human life. The issue is how we treat it.

As to your standard, when exactly does a human have “volitional consciousness”? Fetuses move in the womb and suck on their thumbs. If that’s not good enough, then when does it start? Infancy? Two years old? Three? Four, when the conscience begins to develop? Is there an objective standard?

Roe ”protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case.

This thinking simply makes the decision even more curious. Does one person, a doctor, have the right to make unfettered decisions for an individual. Did Blackmun elevate the opinion of one member of our society and see it as infallible? Are their :rights” superior to ours?

What about if that same doctor felt in his opinion a person was to old or feeble to live? Is it their right to do so? To take that life because they don’t see it as viable?

SCOTUS and most recently the Roberts Court have shown themselves to be nothing but a Fifth Column of our government. They have fulfilled the Framers worst fears and suspicions. Their only interest is self-interest, not that of the people who own this republic.

We should thank Blackman for his candor and his reasoning. If Roe was meant as freeing the Doctor from state interference, then on the face of it socialized medicine in the United States is unconstituional. Socialized medicine is the ultimate interference in the practice of medicine by the state. That would make Roe a very conservative decision if morally reprehensible.

We take it as an article of faith that Dred Scott was a horrible decidion. From a legal point of view that is wrong. Dred Scott was rightly decided under the existing laws. Slaverly was a legal institutiion at the time and a slave was legally held property. No governmental body could sieze or invalidate the title to that property without conmpensation under the takings clause of the 5th Amemdment. Do not confuse the immorality of the instittuion with its legal status prior to the Civil War.

Since Roe was justified by a supposed right to privacy, then how can Obamacare be constitutional since it requires we give the govt our most private health care info? Can’t have it both ways, Justice Roberts.

Our Founding Fathers wrote that Americans have “the right to life, liberty, and the pursuit of happiness”. In my opinion, the most important of these rights which our Founders bequeathed us, is the right to life, because without it, the other two rights will never happen on this mortal plane.

kingsjester on January 22, 2014 at 10:26 AM

And the context to that, is something that Beck pointed out:

..”to ourselves and our posterity “..meaning our children yet to be born.

The scientific understanding of human life’s beginning at conception — when the sperm meets the egg and combines to create a unique organism that demonstrates its vitality through growth — was not as strong in 1973 as it is today

Bullhockey, Ed. The actual scientific community was in total agreement as to the biological beginning of a separate life at the time Blackmun wrote his F- term paper on how “uncertain” the science was.

Roe v Wade was not only bad law and bad politics, it was awfully, terribly, bad science, too!

If ROE is overturned, what will be done to the murderers of 55 million children? Amnesty?

I am not trying to be outrageous, just honestly curious.

If it is suddenly no longer legal to kill your baby out of convenience, what becomes of all of that death and the people that caused it? I assume that few have the will to proscribe punishment equal to anyone else who would kill a child, so what is to be done? Just walk away and pretend it never happened? That is the easy answer.

A more difficult question would be…What do we do when a woman gets a (newly illegal) abortion? You know it will happen, it did before ROE vs WADE and it will if it is overturned. Will abortion become an actual Murder in the eyes of the law? If not, how not? The argument for overturning it is that we are allowing an innocent life to be killed.

I don’t think we as a society are ready to go that far (I could be convinced to but have no doubt that I am a fringe minority) but it is one thing to talk about overturning this decision and it is another to contemplate what will happen if it is. The risk of going too far and alienating people who would otherwise agree that abortion has to stop is too great. I think there need to be answers to these questions before such drastic transformation can take place (politically speaking).

According to the decision he did. It says the desired right can be inserted discovered in any of several parts of the Constitution, and it did not matter where.

I go along with Robert Bork in agreeing with that: it meant nothing where the invisible text to justify abortion on demand was “discovered”. If it was in privacy, that would create no general right of privacy, as Obamacare demonstrates. If if was in equal protection, that would not create any protection, equal or otherwise, for the human beings killed.

Why? Because the mighty do what they can, and the weak suffer what they must.

That would make Roe a very conservative decision if morally reprehensible. jerryofva on January 22, 2014 at 10:43 AM

Conservatives do not yank a human being from it’s mother’s womb.

Try a different word in describing Roe Vs. Wade.

“Conservative” decision, my hindquarters.

kingsjester on January 22, 2014 at 10:46 AM

Consrvative does not equal moral.

Conservatives are also split on this. Libertarians are considered conservatives by most people who post at Hot Air. They are in favor of abortion rights so you have made a false statement based on emotions.

His reasoning is conservative because he put a constraint on the power of the state to dictate what a physcian can and cannot do. If the Courts use this reasoning then socialized medicine is off the table.

just to clarify, I did not intend to drop the context of Roe which is about the first tri-mester. Now, the way I see it, there is no Individual in the first tri-mester. For me, that’s the objective and moral standard for a woman’s choice.

As to when the human life has a volitional consciousness with the capacity for reason, I can only say for sure it is possessed at birth. Maybe its sense of touch is active enough in the first tri-mester that when impinged upon it can begin to “program” its consciousness. I don’t know but, to meet my standard I’d say the “programming” has to impinge upon a volitional consciousness with the capacity for reason. After all, if sense of touch is active at all in humans or animals at this early stage, a giraffe’s sense of touch is likely impinged upon in the same way while in the womb but no volitional consciousness with the capacity for reason is ever present.

Blackmun adjusted his own approach from constructionism to one based in the highest ideals of justice. This is demonstrated on this site though a general history of his time on the Court, in addition to his evolving approaches to women’s rights and the death penalty, which were chosen not only because they are the best examples of his ideological transition, but also because they are where he left a lasting impression.

Why are people, who seem more interested in THEIR legacy, appointed to positions of power over the interests of the majority of people at the time, based on the concepts of the Constitution, which he, like Ginsberg, seem to think that changing the Constitution more to their liking, is the purpose of being a member of SCOTUS?

“If ROE is overturned, what will be done to the murderers of 55 million children? Amnesty?”

Under Article I sections 9 and 10 Expo Facto prosecutions are prohibited. If an abortion was performed under Roe v Wade then it was legal at the time and cannot be turned into a crime.

You also don’t understand that all Roe v Wade did was federalize abortion rights. If Roe were overturned it would not outlaw abortion. It would return it to the states. Some states would allow it and others would not.

I am appalled at the lack of understanding that you and other “constitutionalists” have of the actual document.

Now, the way I see it, there is no Individual in the first tri-mester. For me, that’s the objective and moral standard for a woman’s choice.

beselfish on January 22, 2014 at 11:05 AM

How is that possible?
The fetus, at any stage, is NOT part of the womans body.
If the DNA were identical to that of the woman, then it WOULD be part of her body.
If the DNA is not identical to that of the woman, the it is NOT “part of her body”.
That is simply the science of it imo.

Under Article I sections 9 and 10 Expo Facto prosecutions are prohibited. If an abortion was performed under Roe v Wade then it was legal at the time and cannot be turned into a crime.

jerryofva on January 22, 2014 at 11:10 AM

That seems like, tho intellectually accurate, trivializing of the acts.
Under your understanding, the murder of Indians, blacks, Chinese etc, were not crimes if legal at the time.
Correct? This is the way you view those historical acts?

That seems like, tho intellectually accurate, trivializing of the acts.
Under your understanding, the murder of Indians, blacks, Chinese etc, were not crimes if legal at the time.
Correct? This is the way you view those historical acts?

Mimzey on January 22, 2014 at 11:17 AM

It’s not intellectually accurate in is constitutionally accurate.
The crimes you descrbed were against written law and were crimes not prosecuted at the time. Are you that stupid not understand the difference?

Believe somehow that a human being, conceived by 2 other human beings, is not a human being, until the 2nd trimester, if that helps you sleep better at night.

Dr. Carlo Bellieni, in his book “Dawn of the I: Pain, Memory, Desire, Dream of the Fetus,” says:

As soon as it is born, the child shows in a scientifically demonstrable way that it recognizes its mother’s voice and distinguishes it from that of a stranger. Where has he learned that voice other than in the maternal womb?

There are also direct proofs. For example, we register how the movements and cardiac frequency of the fetus vary if we transmit unexpected sounds through the uterine wall. And we see that at first the fetus is startled, then it gets used to it, just like we do when we hear something that does not interest us.

In fact, the scientific evidence is immense. We cannot understand how it can be thought that it becomes a person at a certain point, perhaps when coming out of the uterus.

From the physical point of view, at the birth very little really changes: Air enters the lungs, the arrival of blood from the placenta is interrupted, the type of circulation of blood in the heart changes, and not much more.

As I often say, only blind faith in magic arts or some strange divinity can lead one to think that there is a “human” quality leap at a given moment — certainly not science.

Ok, I will treat your request seriously. The Constitution prohibited Expo Facto prosecutions because it was common practice in England to make a perfectly legal actionillegal and prosecute people for legal at the time actions becaue the Crown didn’t like them. It was tool of oppression by the authorities. Along with Bills of Atainder, which the Crown used to prosecute specific individuals, the Founding Fathers wanted to take away these tools of oppression from the hands of the State.

In this case in may prevent the rectificaiton of an injustice but that the price we have to pay to prevent the abuse of the State’s law making powers.

How is that possible?
The fetus, at any stage, is NOT part of the womans body.
If the DNA were identical to that of the woman, then it WOULD be part of her body.
If the DNA is not identical to that of the woman, the it is NOT “part of her body”.
That is simply the science of it imo.

The crimes you descrbed were against written law and were crimes not prosecuted at the time. Are you that stupid not understand the difference?

jerryofva on January 22, 2014 at 11:21 AM

Bless your heart..aren’t you kind?
What written laws at the time are you referring to?

My point was your seeming trivializing of the act of killing under Roe and other state laws, intellectually giving them a PERSONAL thumbs up because of legal papers.
Thats why I asked about your thoughts on the other killings in our history. I’m sure you’re smart enough to understand that.
Legal at the time or not, do you denounce the killings under Roe etal. in the same way as the others…assuming you do denounce those other killings.

Just as gays want to re-define the word “marriage”, to condone the sexual activity, so do Social Liberals desperately want to re-define the word “Conservative” to suit their own political ideology.

Conservativism remains a three-legged stool: Fiscal Conservativism, Social Conservatism, and Military Defense.

Take any one of those legs away, and just like a stool, your claim to a Conserviative Political Ideology does not stand on its own merits.

I, and Sarah Palin, may agree with you and if have bothered to read some my posts, most people don’t. However,the common understanding of conservatism held by most of the people who post here includes Libertarianism.

It is my opinion now backed up by Libertarian writings supporting income re-distribution, that Liberarians are market oriented radical syndicalists who are more extreme leftists than Progressives.

That’s fine, I have no issue with that. I can’t say yea or nay on that and i haven’t. As I posted earlier, the human life in the first tri-mester is at best a potential individual. Rights are for actual individuals. The only individual present during that early time is the mother. As a result, it’s her choice.

My whole point has simply been, 14th Amendment-based ruling would NOT have to take into account the equal application of law to both the woman and the human life becuase the human life is NOT an Individual therefore only the rights of the woman would have be accounted for.

You ar for it when it suits your purposes. Article I sections 9 and 10 don’t suit your purposes so are against it. In other words you believe in the rule of men and not the rule of law. Hardly a position taken by a constitutionalist. What other “rules” in the Constitution are you against?

You ar for it when it suits your purposes. Article I sections 9 and 10 don’t suit your purposes so are against it. In other words you believe in the rule of men and not the rule of law. Hardly a position taken by a constitutionalist. What other “rules” in the Constitution are you against?

jerryofva on January 22, 2014 at 11:46 AM

I understand you claim. You’re simply restating it using slightly different words.
I don’t recall posting anything conflicting with Article I or any sections, nor claiming they were wrong. Can you point out where I have? Thanks!
My only questions to you were in regards to your personal views to the killings, i.e. do you consider them the same? Also, I asked you for a basis to your claim that the killing of the Indians etal. being against written law at the time.
Do you have those yet? Take your time..No big whoop.

You ar for it when it suits your purposes. Article I sections 9 and 10 don’t suit your purposes so are against it. In other words you believe in the rule of men and not the rule of law. Hardly a position taken by a constitutionalist. What other “rules” in the Constitution are you against?

Talk about killing the goose that lays the golden egg. There are now 55 million potential social security contributors that cannot participate in the legalized Ponzi scheme. Millions more if you exponentially stretch it out. As with all Ponzi schemes, it depends on fresh blood to sustain itself. The dems are destroying the socialized welfare they created.

My opinions are irrelevent. You asked what should we do about the abortionists should Roe v Wade be overturned and the Constitutional answer is that we can do nothing. If that bothers you I can do nothing to help you.

And apparently besser the idiot has not been following the line of discussion. Shut up until you have.

My opinions are irrelevent. You asked what should we do about the abortionists should Roe v Wade be overturned and the Constitutional answer is that we can do nothing. If that bothers you I can do nothing to help you.

And apparently besser the idiot has not been following the line of discussion. Shut up until you have.

jerryofva on January 22, 2014 at 12:16 PM

I think I’ve found the problem.
You’re confusing me with another poster.

The only thing I asked was your opinion on the, what could be an intellectual conflict, regarding other groups who may have not been seen as full members of the human family.

No it would not have to account for both the woman and the human life. The only individual in the discussion is the woman. The human life is at best a potential individual. Rights are for individuals. Words have meaning and most especially the words carefully chosen in the founding of this country.

Dictionary via google;

in·di·vid·u·al (indəˈvijəwəl)- adjective 1.single; separate.

Additionally, a unique organism that demonstrates its vitality through growth is also a slug, an oak tree or a giraffe. A human being with rights, (i.e. an Individual) is a unique organism with a volitional consciousness and the capacity for reason.

beselfish on January 22, 2014 at 10:36 AM

Genetics thwarts every aspect of your argument. The child is genetically distinct from the mother, meaning that it is unique and individual.

Genetics also demonstrates that a human baby in utero is not a slug or a tree or a giraffe. It is specifically classified as human.

You also make references to reason and volition. Most children do not have these advanced characteristics until somewhere between 18 months and 2 years. Do you propose they are inhuman, and therefore their lives are forfeit to the whim of another? What of incompetent adults, are they also not a living human?

I know these questions are not new to you, even in this thread, but your answer to the “first trimester” is far from satisfactory, as there is nothing particular to the 13th week of gestation that gives rise to this. It is an arbitrary date set by a clock that only exists outside the womb.

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

The ultimate question isn’t actually about religion or faith, but whether one human being has the right to kill another for the sake of convenience…. So far, we’ve killed 55 million human lives on the scientifically ignorant premise that either they’re not really human or they’re not really alive, or the ethically bankrupt notion that one human life isn’t as important as another and can be tossed away when inconvenient.

Quite correct, Ed. This is the premise in the novel The Audacity of Hope and Change, which takes the idea of unborn babies being “unviable tissue masses” to the next level. It describes a future America in which children, after birth, are considered to be “viable tissue masses”, subject to termination until they complete a State-approved indoctrination program and are recognized by the State as human beings.

It’s encouraging to see that the tide may be turning against the premeditated murder of unborn children, whose rights to life, liberty, and the pursuit of happiness are being trampled on.

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

That is not the scientific understanding, there is no “beginning”, it is continuous. About 150 years ago, Louis Pasteur locked down what has become one of the most basic principles in biology -Life begets life. Which means life is a continuum.

What that means in this case is that both the egg and the sperm are alive, as is the fertilized egg. Assuming the egg and sperm are human, they “contain” human life. There is no time during the reproductive process where there’s a transition from non-life to life (a beginning of life).

Conception is the point where two living (human in this case) cells join to create a unique human life. So really, the only time the question of the beginning of life arises is when discussing the origin of life.

Ed,
Thank You! while some of your views shift you are always solid when writing about the sanctity of life. This is one of the reasons I started reading HA.

on the scientifically ignorant premise that either they’re not really human or they’re not really alive, or the ethically bankrupt notion that one human life isn’t as important as another and can be tossed away when inconvenient.

The hubris of believing that we, weak and sinful, should have the power to end innocent life because of our vanities or out of convenience, that hubris is the biggest sin of all. All these prochoice thickheads pretend to be gods. Humility would help.

Lawyers,
I like the law posts and I learn tons. But I have noticed one thing. Lawyers put most of their stock in the reasoning for a law but in the real world, in the SCOTUS or district courts, politics seems to be the real driver behind these rulings. I never see a law unwound because of faulty reasoning. Fighting for consistent iron clad logic, in regards to SCOTUS or district courts is tilting at windmills. High court is ugly congressional politics, not something pristine. Like Obamacare and Roberts. Lots of lawyers here were sure it would get struck down but politics trumped everything they read in their law books. And that happens all the time.

If it is suddenly no longer legal to kill your baby out of convenience, what becomes of all of that death and the people that caused it? I assume that few have the will to proscribe punishment equal to anyone else who would kill a child, so what is to be done? Just walk away and pretend it never happened? That is the easy answer.

What is inconsistent with Article I, sections 9 and 10? People may have the “will to proscribe punishment equal to anyone else who would kill a child,” but that is entirely different from actually doing it. People “wish” that the law was different all the time. Yes, even parts of the constitution. That doesn’t make them lawless. That doesn’t mean that the constitution isn’t the law. And it doesn’t change the fact that there are legal and illegal mechanisms to changing the law, including the constitution.

…Roe v Wade lives on — even if 55 million of its victims have not.
– Ed

Hyperbolic, to say the least.
I’m curious Ed – where would you place the ‘blame’ (I’d suggest you consider ‘explanation’) for all the abortions that preceded RvW?
And where would you place it for all that would surely follow should the ruling ever be successfully challenged.

And as you are at odds with this ruling, are you also at odds with the Church’s teachings and positions on birth control and sex ed?

The only way to reduce abortions is to reduce unwanted pregnancies.
But regardless, abortion has been with us and will be as long as miscarriages.

If Blackmun wanted to legislate, he should have run for a congressional seat.

I remember an interview, something like 20 years ago. He was talking about Roe, and an unmistakable look of something like “duping delight” came across his face. He was clearly pleased with himself for exerting control in the fashion he did. He knew abortion should have been left to legislatures, but he wanted to feel the power. And he did.

He didn’t have the temperament to be a judge. You can see more evidence of this from the quote above:

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

just to clarify, I did not intend to drop the context of Roe which is about the first tri-mester. Now, the way I see it, there is no Individual in the first tri-mester. For me, that’s the objective and moral standard for a woman’s choice.

As to when the human life has a volitional consciousness with the capacity for reason, I can only say for sure it is possessed at birth. Maybe its sense of touch is active enough in the first tri-mester that when impinged upon it can begin to “program” its consciousness. I don’t know but, to meet my standard I’d say the “programming” has to impinge upon a volitional consciousness with the capacity for reason. After all, if sense of touch is active at all in humans or animals at this early stage, a giraffe’s sense of touch is likely impinged upon in the same way while in the womb but no volitional consciousness with the capacity for reason is ever present.

…Roe v Wade lives on — even if 55 million of its victims have not.
– Ed

Hyperbolic, to say the least.

I’m curious Ed – where would you place the ‘blame’ (I’d suggest you consider ‘explanation’) for all the abortions that preceded RvW?

verbaluce on January 22, 2014 at 1:22 PM

He used the same accounting techniques as Obama has used for counting the number of people that have enrolled in Medicaid as a result of Obamacare. Are those numbers hyperbolic as well?

Anyway, I will grant you that there would have been some abortions without Roe v Wade, particularly, since abortions were legal already in many states. However, I think that it is safe to say that it would have been significantly less than 55 million. Maybe the abortion mills should open up their books to the number of abortions that they performed when and where so that we can get a more accurate assessment of the impact of Roe v. Wade?

Anyway, I will grant you that there would have been some abortions without Roe v Wade, particularly, since abortions were legal already in many states. However, I think that it is safe to say that it would have been significantly less than 55 million. Maybe the abortion mills should open up their books to the number of abortions that they performed when and where so that we can get a more accurate assessment of the impact of Roe v. Wade?

besser tot als rot on January 22, 2014 at 1:39 PM

Abortion still would have been a dirty word if not for RvW. The celebration of abortion is post RvW. The “highest” court gave abortion it’s imprimatur. It was used by the left to sell abortion.

As Rush and I think others have pointed out, what will the pro-abort crowd say if science eventually discovers some gay genome and that can be detected in utero? It’d be pretty amusing to watch the gay mafia fighting the pro-abort cartel over their very existence.